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what is a private nuisance?
“an unlawful, indirect interference with a person’s use or enjoyment of land coming from neighbouring land”
nuisance: what must the claimant have?
a legal interest in the land - the owner or the tenant, family or lodgers cannot claim as they don’t have a legal interest in the land
nuisance: what must the d be ?
the owner or in control of the neighbouring land - they occupy it. They are the person causing or allowing the nuisance
nuisance: what must c prove?
that d’s actions were an unreasonable interference - this can be fumes or noise. The court considers factors of reasonableness
nuisance: what must be considered (1)
locality - in a city, more noise is expected than in the countryside so it’s less likely to be unreasonable - more lights and noise would be expected in a commercial area. Sturges says “what would be a nuisance is Belgrave square would not necessarily be so in Bermondsey”
nuisance: what must be considered (2)
duration - it’s likely to be continuous at unreasonable times of the day - a one off event is unlikely to be a nuisance (Crown River Cruises)
nuisance: what must be considered (3)
sensitivity of the claimant - d is unlikely to be liable if c is unusually sensitive (Network Rail)
nuisance: deliberately harmful
a deliberately harmful act will normally be unreasonable behaviour and therefore a nuisance (Christie v Davey)
nuisance: when are actions reasonable?
if d is providing a benefit to the community (Miller)
what is the structure for nuisance AO1?
Definition
Claimant must have a legal interest in the land
C must prove d’s acts were an unreasonable interference
factor to be considered: locality
factor to be considered: duration
factor to be considered: sensitivity of the claimant
deliberately harmful act
when are actions reasonable?
nuisance defence: prescription
d will have a defence if c hasn’t made a complaint in 20 years (Sturges - salt room)
nuisance defence: statutory authority
an Act of Parliament allows d to carry out the activity which causes the nuisance. D has legal permission (Allen - an oil refinery was allowed to operate)
nuisance defence: moving towards nuisance
d may argue that c moved towards the nuisance - this will not be a defence, c can still claim (Miller)
nuisance defence: social benefit
d may argue that they provided a social benefit - this will not be defence, but it could be taken into account when awarding damages, d may pay less
rylands v fletcher: what must the c have?
a legal interest in the land - they own or rent it (Hunter). the d is the person who have control over the land one which the material is stored
rylands: what can c claim for?
property damage NOT personal injury
rylands: element one
there must be a bringing into the lane and an accumulation of the thing. it’s not R v F if the thing accumulated is natural eg weeds (Giles)
rylands: element two
the thing is likely to cause mischief if it escapes. Standard - d was not liable as tyres are not exceptionally dangerous and they didn’t escape
rylands: element three
the thing escapes and causes reasonably foreseeable damage. the thing escaping doesn’t have to be reasonably foreseeable, but the damage must be (Cambridge Water - d wasn’t liable as it was too remote)
rylands: element four
there must be an extraordinary and unusual use of the land
domestic water pipes are not extraordinary (Rickards)
things stored in large quantities can be extraordinary (Harooni)
if the public gains a benefit e.g electricity it’s a natural use (British Celanese)
rylands defences: acts of a stranger
d will have a defence if a stranger who they have no control over is the cause of the escape which causes damage (Ribee)
rylands defence: act of god
if an event that is unforeseeable happens e.g extreme weather, d will have a defence (Carstairs)
rylands defence: statutory authority
d has a defence if there’s an act of parliament which authorises d’s actions (Chelsea Waterworks)
rylands defence: common benefit
if c receives a benefit from the thing accumulated, d will have a defence (Peters)
rylands defence: claimants fault
if the escape is due to c’s fault, d will have a defence (Dunn)
rylands defence: contributory negligence
this is a partial defence under the Contributory Negligence Act 1945 meaning c has played a part in the escape - damages reduced by 25%
what is vicarious liability?
one party (employee) is responsible for the tort of another (tortfeaser/employee)
claimant she’s the employer as they are likely to have more money than the tortfeaser
vicarious liability: what are the traditional tests of employment?
called the Salmond Tests
first test: was the tortfeaser an employee?
the control test (Hawley) - the tortfeaser is more likely to be employed if the d has control over them
the integration tests: you’re employed if you’re fully integrated into the company/business e.g a freelance worker is not integrated
the economic reality test (Ready Mixed Concrete) - states that the tortfeaser is likely to be an employee if they get holiday pay, tax is deducted and it looks like an employment contract
vicarious liability: what does the court have to decide?
whether the wrongdoing happened “in the course of employment”
if the tortfeasor acts against orders, the employer is still liable (Limpus)
if the employer benefits from the tortfeasors work, they are liable (Rose)
the employer is vicariously liable even if the tortfeasor commits a negligent act (Century Insurance)
vicarious liability: when isn’t d liable?
when the employee acts on a “frolic of their own” (Hilton)
vicarious liability: intentional tort
if the tortfeasor commits an intentional tort, two questions are asked: is it akin to employment? does it pass the close connections test?
vicarious liability: akin to employment
this means it’s similar to an employment contract - if the tortfeasor is an independent contractor, d is not liable (Barclays Bank)
vicarious liability: Catholic Child Welfare Society
helps to decide if the relationship is akin to employment
i) the employee is more likely to have the means to compensate and have insurance
ii) the tortfeasor was doing work for the employee when the tort was committed
iii) there’s a link between the activity and the business
iv) the employer creates the risk of the tort by employing the tortfeasor
v) the employee was under control of the employer
vicarious liability: what can be included in akin to employment
can include a prisoner being employed by the prison (Cox)
vicarious liability: close connection
must be a close connection between the tortfeasors actions and what they were employed to do
Morrisons: was a close connection when tortfeasor punched a customer
Morrisons: no close connection when tortfeasor stole data as it was a deliberate attempt to harm the business
what is the structure for vicarious liability AO1?
what is it?
Salmond Tests inc. control, integration and economic reality
in the course of employment
frolic of their own
intentional tort: akin to employment and close connection
akin to employment
catholic child welfare society criteria
close connection
OLA 1957 - who is the burden of proof on?
the claimant on the balance of probabilities
what is an occupier?
the d is the occupier - someone who has control and possession of the premises (Wheat)
what does premises mean?
Section 1(3) - fixed or moveable structures including lakes (Tomlinson)
OLA 1957 - what type of visitors?
lawful - these are people who have permission to be on the premises e.g a person invited in or a police officer
OLA 1957 - what does Section 2(2) state?
that visitors must be kept “reasonably safe in using the premises for the purpose that they’ve been invited”
OLA 1957 - what kind of care does the occupier have to take?
the occupier has to take reasonable care and doesn’t have to make the premises completely safe (Laverton)
OLA 1957 - children
there is an additional duty owed to children and Section 2(3) says you must be prepared for children to be less careful than adults (Taylor) HOWEVER Phipps states that if a child is very young, the parent should be looking after them
OLA 1957 - workers
the occupier does owe a duty to workers, however Section 2(3)(b) states that a worker must guard against any special risks (Roles v Nathan)
OLA 1957 - independent contractors
Section 2(4) deals with visitors injured by independent contractors
Section 2(4)(a) - the occupier isn’t liable if it was reasonable to give the work to a contractor (Haseldine)
Section 2(4)(b) - they were competent to carry out the task (Bottomley)
Section 2(4)( c) - the occupier checked that the work was done properly (Woodward)
what defences are available to OLA 1957?
consent - d is not liable if c freely accepted the risk of injury (Morris)
contributory negligence will reduce damages if c is partly to blame (Froom)
exclusion clauses - cant exclude death or serious injury
warning signs - need to be clear and no need to put a notice up if there is an obvious danger (Staples)
structure of an OLA 1957 question?
occupier
premises
lawful visitors
reasonably safe
children
workers
independent contractors
any defences?
OLA 1984 - what is an occupier?
a person in control or possession or the premises
OLA 1984 - what is premised?
a fixed or moveable structure including lakes (Tomlinson)
OLA 1984 - what is a trespasser?
a person with no permission to be on the premises or goes beyond their permission
OLA 1984 - what is Section 1(1)(a)?
a duty applies to trespassers for injury on the premises by reason of any danger due to the state of the premises
OLA 1984 - how much care does the occupier need to take?
the occupier needs to take reasonable care in the circumstances - Section 1(4)
OLA 1984 - what are the three requirements for the occupier to be liable?
under Section 1(3)
a - the occupier must be aware of the danger or have reasonable grounds to believe it exists e.g Rhind
b - know or have reasonable grounds to believe that people come into the vicinity of the danger e.g Higgs
c - the risk is one against which they may be reasonably expected to offer some protection
OLA 1984 - adults and children
adults and children are treated in the same way
OLA 1984 - when isn’t an occupier liable?
if there’s a clear warning sign
there’s an obvious danger
there’s damage to property e.g phone, watch as c can only claim for personal injury
what’s the structure for an OLA 1984 question?
occupier
premises
trespasser
when does a duty apply
three requirements
adults and children
when isn’t an occupier liable?
what is negligence?
a tort where an act or an omission causes injury to a person or damage to their property - burden of proof is on the claimant on the balance of probabilities
what is element one of negligence?
d must owe the claimant a duty of care
donoughue used the neighbour test and said you owe a duty to those closely affected by your actions
what is the caparo test?
sets out a three stage test for a duty of care - it’s only used if there’s no existing precedent setting out a duty (Robinson)
what are the three stages of caparo?
one: was damage/harm reasonably foreseeable (Kent)
two: is there proximity of relationship between d and c (Bourhill and McLoughlin)
three: is it fair, just and reasonable to impress a duty? (Robinson means the police can now be sued)
negligence: element two
breach of the duty (Blyth) - a breach is established if a reasonable person wouldn’t have acted in that way
negligence: who are you judged against?
a competent equivalent person in that trade e.g doctor to reasonable doctor (Bolam), learner driver judged to the standard of a competent driver (Nettleship) and children are judged to a reasonable child of that age (Mullins)
negligence: risk factors
the greater the risk of harm, the greater the care need to be taken
special characteristics: paris
size of risk: bolton
adequate precautions: latimer
public benefit: Watt
negligence: what if d isn’t aware of the risk?
then d won’t be liable (Roe)
negligence: element three
causation of damage
factual causation - but for d’s actions, the end result would not have happened (Barnett)
legal causation - remoteness (Wagon Mound) - damage must not be too remote and the injury must be reasonably foreseeable (Hughes)
negligence: egg shell skull rule
d must take their victim as they find them (Smith v Leech Brain)